This article first appeared in Techdirt on April 28, 2015.

When your car runs out of gas, you can fill it up at any gas station you like. You never worry if the company that made your car has an exclusivity deal with one gas station or another, or even if that company has a preference for one brand of gas. In fact, you would probably find it some combination of ridiculous, galling, and offensive if the company that made your car threatened you with a copyright infringement lawsuit if you didn’t go to their preferred gas station to fill up.

This dynamic is true for all sorts of things. Once you buy it, it is up to you to decide how you maintain it and replace what needs replacing. This is true of gas in a car, water in a bottle, and filters in a vacuum cleaner. But as software gets introduced into more and more everyday objects, some companies are trying to stretch copyright law beyond its limit in order to lock you into buying replacements only from them.

A decade ago, we saw this play out with 2D printers and toner ink. Some companies that made printers decided that they would prefer that consumers buy replacement toner (at a substantial markup) only from them. In order to attempt to lock themselves in as the only place to buy replacement toner, these companies designed their printers to look for a special verification chip on new toner cartridges to prove that the new cartridge came from them. When another company figured out a way around these chips, the printer manufacturers ran to copyright law to try and shut them down.

Fortunately, the courts saw through this ruse and were able to recognize that allowing consumers to choose where they get replacement toner for their printers has nothing to do with copyright law. Unfortunately, today some 3D printer manufacturers are trying this same gambit and hoping for a different outcome.

In a proceeding in front of the Copyright Office, 3D printer manufacturers offer a parade of horribles of what will happen [pdf] if users are free to choose the materials they use in their printers. Notably, none of these have anything to do with copyright. The only connection any of this has with copyright is that the printer manufacturers use a small line of code to verify if they sold the refills.

Just as adding a verification chip to a gas tank shouldn’t be used as a pretext to lock a car owner into a single source of gasoline, adding a verification chip shouldn’t be used as a pretext to lock a 3D printer user into a single source of 3D printing material.

3D printing is an emerging engine for innovation, and because of that this issue would be important even in isolation. However, the battle being fought over 3D printer material occurs against the backdrop of other attempts to use copyright as a pretext to limit consumer choice in all sorts of contexts. Be it accessing data from medical devices implanted in your body, repairing farm equipment that breaks down in the field, or unlocking your cell phone, the current proceeding before the Copyright Office – known as the “1201 triennial” after the part of the law that created it – is a preview of a future where manufacturers have the power to lock consumers into whatever they please.

That is what makes the Registrar of Copyrights’ decisions so important in this proceeding. Not only will the right decision clear the way for consumer choice. Strongly siding with users and against copyright creeping into everything sends a strong message that copyright has its purpose, but that it should not be abused.

Many of you will likely remember that shortly after the Super Bowl there was a bit of a thing here on Shapeways in connection with a model of Left Shark.  To briefly review and condense the timeline: person awkwardly dancing inside shark costume during the halftime show rockets to internet fame.  Designer Fernando Sosa creates 3D model of the newly christened “Left Shark” and starts selling it on Shapeways.  Katy Perry’s lawyers send Shapeways a nastygram asserting rights in Left Shark.  Fernando Sosa responds, questioning if Katy Perry has any rights in Left Shark at all.  Left Shark makes its triumphant return to Shapeways.  (In a B story that foreshadows today’s news, Katy Perry then uses Sosa’s Left Shark as part of her trademark application).

Today the Left Shark IP story that never ends added a new chapter.  As was widely reported, Katy Perry’s application to register the Left Shark costume as a trademark was denied by the United States Patent and Trademark Office (PTO).  What does this actually mean?

As attorney Mark H. Jaffe (who has been all over the trademark angle of this story on twitter) reminded us this morning, this refusal by the PTO is an initial refusal. That means that Katy Perry still has an opportunity to respond, and to modify her application in order to improve its chances of being approved.

Another thing to keep in mind is that trademark is different from copyright.  Trademark is all about helping consumers match a service to a service provider.  That means that a big part of getting a trademark is showing that people use it to identify your services or goods, and to distinguish them from other services or goods in the marketplace.

Enough with the background – what actually happened?

Katy Perry (well, Katy Perry’s company Killer Queen LLC) applied to use the Left Shark costume as a trademark to identify Katy Perry-related goods and services in the marketplace.  In refusing the application, the examiner essentially found that Left Shark does not identify Katy Perry’s “musical or dance performances” in the marketplace. Essentially, the examiner found that Left Shark represents Left Shark and not Katy Perry to consumers.  When people see Left Shark figurines, or Left Shark on cell phone covers, mugs, and sweatshirts, they don’t think “Katy Perry.”   They think “Left Shark.”

Now Katy Perry has some time to respond to the PTO for both the costume registration and the words “Left Shark.”  Until she does, and until the PTO accepts the marks, Katy Perry does not have a trademark in Left Shark.

Surely the legal machinations surrounding Left Shark will outlast the half-life of Left Shark’s fame by a few orders of magnitude.   So keep your eyes on the Shapeways blog for all of the latest news.

Hi Shapeways!  I’m excited to be joining the team as the new IP and General Counsel around here.  3D printing is obviously amazing for all sorts of reasons, and one of those is how it gives people an opportunity to rethink their relationship to intellectual property law.  3D printed objects and files do not fit as neatly into intellectual property law as things like music and movies.  This gives the 3D printing community a chance to redefine the relationship between creativity, creation, and intellectual property law (among so many other things).  Law certainly has an important role, but a healthy community does not rely on law alone in order to thrive.

For the past few years, I’ve been working on public interest technology policy at Public Knowledge.  While there, I wrote a few whitepapers on 3D printing and intellectual property law: : It Will Be Awesome if They Don’t Screw It Up, What’s The Deal with Copyright and 3D Printing, 3 Steps for Licensing Your 3D Printed Stuff.  I also helped to organize 3D/DC, an annual 3D printing policy conference in Washington, DC.

I’m excited to join Shapeways and to try and put some of the ideas I have been working on for the past few years into practice.  As the leading 3D printing service and marketplace, Shapeways is uniquely positioned to help establish and model the ways in which we interact with the 3D printed world.  Doing things right here at Shapeways means proving to the world that we can avoid some of the fights that have held back new technologies in the past.

Fortunately, Shapeways already has a track record of doing things right.  We have partnered with Hasbro to create SuperFanArt and pioneer a new model for collaboration between existing IP holders and their most devoted fans.    We have also taken a community-first approach to defining and implementing our content policy in order to make sure that Shapeways works for the Shapeways community.

I know that these great initiatives are just the beginning.  The best thing for Shapeways and the Shapeways community is to create a space that works for everyone.  That means respecting rights and creativity, and encouraging experimentation and new models.  It also means continuing to be strong advocates on behalf of 3D printing and the 3D printing community.  We’re still at the beginning of this process, and look forward to continuing to develop new methods of fueling creativity in the future.

Of course, part of trying new things is sometimes getting things wrong.  Fortunately, the best way to respond when you are getting something wrong is to make it right.  In that spirit, if you see us doing something wrong or you have ideas of ways that we could be doing more right, send me an email at mweinberg@shapeways.com or a tweet @mweinberg2D. I can’t promise that I will be able to answer everything, but I’ll do my best.  Of course, you can also send me emails and tweets if we are doing something right.

Finally, I look forward to connecting with the Shapeways community through this blog and other channels.  Shapeways works because it works for you, and I know that sometimes changes (especially changes that involve legal aspects, and even if they are good changes) can be disruptive.  I will strive to be as transparent as possible about what we are up to.

Until then, keep making great things!

Reihan Salam’s piece on hospitals over in Slate last week felt strangely familiar.  The piece, titled “Hospitals Are Robbing Us Blind” was ostensibly about how hospitals are gouging everyone on medical services.  He described a market with limited competition made up of politically powerful incumbents.  Competition has been reduced by a slew of regional mergers, further consolidating the players.  Although Salam details a number of hospital-specific problems, he concludes that there are essentially two solutions to this problem: recognize that hospitals often have near monopolies and regulate them as such, or use antitrust law in the short term and reduced barriers to entry in the long term to increase competition.

Abstracted out a half level, those are essentially the solutions that were being debated around net neutrality for the past year (there was also the third “let ISPs do whatever they want” option pushed by ISPs, but let’s ignore that).  Problem: a combination of market forces and regulatory acquiescence has allowed large concentrations of power in a critical industry.  Solution 1: regulate those concentrations of power like the concentrations of power that they are.  Solution 2: break up those concentrations through both regulatory and  market mechanisms.

There are criticisms to both of these approaches.  Critics of solution 1 will raise concerns that concentrations of economic power are often also politically powerful. Therefore strong regulatory oversight will not work because the regulated entities will simply use their political power to undermine the oversight.  Critics of solution 2 will point to the relative weakness of antitrust law at this point in our history, worrying that “break them up” in practice is a lot harder than the theory would suggest.

But set those criticisms aside for the moment.  The more interesting question may be: is this a trend?  The antitrust laws that came out of the trust-busting era have gotten us a long way and continue to do good work.  However, we are now seeing an increasing concentration of power in a number of areas of our economy and society even with those laws in place.  These concentrations have real negative effects on everyday people.  The solutions to these concentrations can work (regulate them like a monopoly, break them up), but are imperfect and probably not ideal at scale: regulating an industry like a monopoly should be something of a last resort, and if current antitrust law made it easy to break these concentrations up we probably wouldn’t have these problems.  (As an aside, this article by Tim Wu describes some of the challenges that antitrust law is currently facing in the context of innovating sectors of the economy).

Salam ends his piece with the observation that “curbing the power of big hospitals isn’t a left-wing or a right-wing issue. Getting this right will make solving all of our health care woes much easier, regardless of where you fall on the wisdom of Obamacare. Let’s get to it.”  The same could be (and has been) said for net neutrality.  

How many more of these issues are there?  And will their existence force us to develop a bipartisan framework for addressing them?  I suspect there are more, and I hope that it does.  For now the best thing may be to just keep our eyes open for them.

Today is my last day at Public Knowledge.  I started at PK as an intern over seven years ago and, though a series of lucky breaks, have pretty much worked there ever since.  I am, and will continue to be, profoundly grateful for every opportunity that PK has ever afforded me. 

PK is made up of people, and those people have consistently given me the guidance and freedom to try new things. Often this level of freedom was a mistake, which makes me all the more grateful.  Gigi, Harold, and Sherwin trusted me when I told them that I wanted to use some of my time for half-baked (at best) ideas.  Some of those ideas worked out, and others didn’t, but they never let the failures mean that I couldn’t make a case to try the next thing.  Alex taught me how to think about advocacy beyond traditional tools like legal filings and Hill meetings.  Alex was also the person who first suggested that we look into some of the IP issues around 3D printing – it is only because of a well timed stint at jury duty that I ended up with the time to dig into it first.  Mehan and Katy forced me – in the best possible way – to think about now non-lawyers want to engage with our issues.  Whitney and Tim made PK a place I wanted to come to work, and John and Jodie showed me what work from real lawyers looks like. And Brooke was my partner in crime in more ways than I can count.

I don’t want to turn this into a list of PK employees, both because that would be tedious and I don’t want to leave anyone out.  PK has always been a place that combines an opportunity to work on the most important tech policy issues of the day with an opportunity to help identify and shape the most important tech policy issues of the future.  I am proud of the credibility that we bring to discussions, and of the fact that even our opponents feel compelled to take our position seriously.  I am equally proud of the fact that PK works with such a diverse collection of allies on such a broad spectrum of issues.

Finally, I look forward to PK’s future.  PK is evolving under Gene, as are PK’s issues.  This is a good thing, and a sign of institutional strength.  Although I won’t be working at PK anymore, I look forward to working with PK on all sorts of issues.